IPP as a “Last but One Resort”: Sentencers Must Address Alternatives Before Imposing Discretionary Imprisonment for Public Protection

1. Introduction

In Rich (aka Whitelaw), R. v [2025] EWCA Crim 1774, the Court of Appeal (Criminal Division) (Sheldon J) considered a markedly out-of-time appeal against an imprisonment for public protection (“IPP”) sentence imposed in 2010 under section 225 of the Criminal Justice Act 2003.

The appellant, Steven Rich (also known as Whitelaw), had pleaded guilty to multiple serious offences including three robberies and the theft of vehicles, with further offences taken into consideration. The sentencing judge found him “dangerous” (a finding not challenged on appeal) and imposed an IPP with a 15-year term and a minimum term of 7.5 years.

The appeal raised two central issues:

  • Extension of time: whether the court should permit an appeal lodged almost 15 years late.
  • Legality/principle of sentence: whether, given that IPP was discretionary at the relevant time, the sentencing judge erred by failing to consider and explain why alternatives (particularly an extended sentence) would not sufficiently protect the public.

2. Summary of the Judgment

The Court of Appeal:

  1. Granted an extension of time, holding it was in the interests of justice given the appellant’s lack of earlier understanding/advice about an out-of-time IPP appeal and that subsequent delay was not attributable to him.
  2. Allowed the appeal against sentence, finding a principled error: there was no indication the sentencing judge considered alternatives to IPP or applied the guidance that IPP was a “last but one resort”.
  3. Quashed the IPP and substituted an extended sentence: a custodial term of 15 years with an extended licence period of 5 years (a 20-year extended sentence in total), with the other sentences made concurrent to reach the aggregate.

3. Analysis

3.1 Precedents Cited

Attorney General's Reference No 55 of 2008, [2009] 2 CrAppR (S) 22

This authority was the cornerstone of the appeal. The Court of Appeal in Rich treated it as setting out the controlling approach to the exercise of the sentencing court’s discretion under the then version of section 225.

Two passages were decisive:

  • At [14], Lord Judge LCJ emphasised that when the criteria for dangerousness are met and IPP is available, the court “should have in mind all the alternative and cumulative methods” of protecting the public, including determinate or extended sentencing frameworks and adjunctive protective orders. IPP is described as “the most draconian sentence available” (subject to discretionary life) and should not be imposed if an overall alternative “protective package” suffices.
  • At [20], IPP is characterised as “the last but one resort”. If an extended sentence (with further supports if required) can achieve appropriate public protection, the extended sentence should be ordered. The decision is fact-specific and must be reasoned.

In Rich, the court held that the sentencing remarks did not show that these principles were considered or applied, and there was no explanation why an extended sentence would be inadequate. That omission was treated not as a mere deficiency of drafting, but as evidence of a failure to exercise the statutory discretion lawfully.

Pilling [2024] EWCA Crim 1279

The appellant relied on Pilling [2024] EWCA Crim 1279 as a modern comparator, noting similarities such as youth at the time of offending and issues around maturity. Although the judgment in Rich did not undertake an extended exposition of Pilling, its mention served two functions:

  • It reinforced the contemporary appellate sensitivity to over-protective indeterminate measures where the statutory regime required a structured comparison with determinate/extended options.
  • It supported the argument that age, development, and capacity for change through custodial interventions are relevant when assessing whether the “risk management” objective truly requires an indeterminate mechanism.

3.2 Legal Reasoning

The court’s reasoning proceeded in three connected steps:

(1) Dangerousness was not the end of the enquiry

The sentencing judge’s dangerousness finding (significant risk of serious harm) was accepted as properly made. However, the Court of Appeal emphasised that, under the statutory structure at the relevant time, that finding did not make IPP automatic. Because section 225(3) then rendered IPP discretionary, the judge had to go on to decide whether IPP was necessary in light of other available protective mechanisms.

(2) Failure to consider and explain alternatives was a principled error

The court held that “there is no indication” the judge considered alternatives such as an extended sentence under section 227 or otherwise reasoned why non-IPP options were insufficient. Against the backdrop of Attorney General's Reference No 55 of 2008, that was an error because the discretion must be exercised by:

  • actively considering the range of protective sentencing tools, and
  • choosing IPP only if lesser measures cannot adequately protect the public.

Notably, the court framed the deficiency as going to the lawfulness of the discretionary choice, not merely the “quality” of the sentencing remarks.

(3) On the facts, an extended sentence would have met the risk

Applying the guidance from Attorney General's Reference No 55 of 2008, the court concluded that an extended sentence would have managed the relevant risk profile. The factors highlighted were:

  • Youth: 23 at sentence.
  • Prior record: extensive dishonesty history, but no previous convictions for violence.
  • Guilty pleas and acceptance of further offences (TICs), indicating cooperation and some mitigation.
  • Prospect of rehabilitation in custody: the realistic opportunity to undertake courses addressing drugs, offending behaviour, and violence as instrumental conduct.

The court’s key evaluative statement was that, properly directing himself, the judge would have concluded an extended sentence sufficed, and that the sentence imposed was therefore “outside the range” a reasonable judge could impose when taking all relevant factors into account.

3.3 Impact

The decision is significant in three ways:

  1. Reinforcement of the “IPP is exceptional” discipline: Even where dangerousness is established, a sentencer must still conduct and articulate the necessity analysis. Silence on alternatives can amount to a reviewable error.
  2. Practical route for historic IPP challenges: The court’s willingness to extend time (on an interests-of-justice basis where the appellant lacked timely awareness/advice and later delay was not his fault) may assist similarly situated prisoners seeking to challenge legacy IPP sentences.
  3. Concrete remedial approach: The court demonstrated how to restructure an IPP into an extended sentence while retaining the custodial assessment (here, keeping a 15-year custodial term but adding a 5-year extended licence), thereby separating (a) punitive term selection from (b) the legally correct protective mechanism.

More broadly, Rich underlines that appellate courts will scrutinise not only whether dangerousness was found, but whether the sentencing court performed the statutory task of choosing the least onerous sentence consistent with public protection, where the regime so requires.

4. Complex Concepts Simplified

  • Imprisonment for Public Protection (IPP): An indeterminate sentence under which release is not automatic at the end of a fixed term; the offender becomes eligible to apply to the Parole Board after the “minimum term” but may remain detained until the Board is satisfied risk is manageable.
  • Extended sentence (section 227): A determinate custodial term plus an additional “extended licence” period after release during which the offender is supervised and can be recalled. It is a structured way to manage risk without the indeterminacy of IPP.
  • Dangerousness finding: A judicial assessment that the offender poses a significant risk of causing serious harm by committing further specified offences. In this case it was accepted, but it did not automatically mandate IPP.
  • “Last but one resort”: A judicial shorthand (from Attorney General's Reference No 55 of 2008) meaning that, aside from a discretionary life sentence, IPP should only be used when other sentencing options cannot adequately protect the public.
  • Concurrent vs consecutive sentences: “Concurrent” sentences run at the same time; “consecutive” sentences are served back-to-back. On appeal, the court used concurrency to maintain an aggregate custodial term of 15 years while replacing the IPP structure with an extended sentence.

5. Conclusion

Rich (aka Whitelaw), R. v stands for a clear and practical proposition: where IPP was discretionary, a sentencing judge who finds dangerousness must still consider and explain why lesser protective measures—especially an extended sentence—would not provide adequate public protection. Treating IPP as the default consequence of dangerousness, without reasoned comparison to alternatives, is an error of principle.

The case also illustrates the Court of Appeal’s readiness to grant very substantial extensions of time in appropriate legacy IPP challenges and to provide a concrete remedy by substituting a long extended sentence that preserves public protection while removing unjustified indeterminacy.